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Mukunda Pradhan And Another v. Krupasindhu Panda And Another
Structured Summary of the Opinion
Factual and Procedural Background
The plaintiff-respondent purchased two plots (Nos. 1227 and 1712) and instituted O.S. No. 298 of 1943 in the Court of the 2nd Munsif, Cuttack, for recovery of possession against defendants who had trespassed upon the suit lands. In that suit the plaintiff also prayed for subsequent mesne profits until recovery of possession. The suit was decreed ex parte and the decree directed that the plaintiff be placed in possession of the disputed properties, but the decree contained no directions about the claim for future mesne profits. The plaintiff obtained delivery of possession through the Court on 7-8-1946 and 31-1-1947. Subsequently, he filed a separate suit for mesne profits covering the period from the date of institution of the first suit until the date of delivery of possession. The defendants contended that this subsequent suit was barred by Order 2, Rule 2 of the Code of Civil Procedure (CPC) and by Explanation 5 to Section 11 of the CPC. The lower courts overruled the defendants' contention, and the present second appeal raises the question whether the plea that the second suit is barred should be upheld. The decree in the earlier suit is silent about mesne profits and no copy of the plaint was exhibited; however, the certified copy of the decree (Ext. 4) indicates absence of any direction regarding ascertainment of mesne profits.
Legal Issues Presented
- Whether a second suit for mesne profits accruing after the institution of the first suit (but before delivery of possession) is barred by Order 2, Rule 2 of the CPC (i.e., whether the plaintiff was obliged to include that claim in the earlier suit to avoid splitting the cause of action).
- Whether Explanation 5 to Section 11 of the CPC (which treats any relief claimed but not expressly granted by a decree as deemed refused) bars the subsequent suit for mesne profits when the earlier decree is silent on mesne profits.
- How Order 20, Rule 12 of the CPC (which enumerates the reliefs a court may grant in a suit for possession and mesne profits, and includes a discretion to direct enquiry into mesne profits accruing after institution until delivery) should be interpreted—whether the court's power under that rule is mandatory or discretionary—and the effect of that interpretation on the maintainability of a later suit for mesne profits where the decree is silent.
Arguments of the Parties
Defendants' Arguments
- The second suit for mesne profits is barred by Order 2, Rule 2 of the CPC because the plaintiff omitted to include in the earlier suit the whole of the claim (i.e., mesne profits up to delivery of possession), thereby impermissibly splitting the cause of action.
- The second suit is also barred by Explanation 5 to Section 11 of the CPC, because any relief claimed in the plaint which is not expressly granted by the decree is deemed to have been refused; therefore, the plaintiff cannot prosecute a subsequent suit for the relief not granted.
Plaintiff-Respondent's Arguments
- The mesne profits accruing after the institution of the first suit did not form part of the cause of action at the time the first suit was instituted, and therefore could not have been included as a claim in that earlier suit.
- Explanation 5 to Section 11 applies to a relief which the Court is bound to grant; it does not apply to a discretionary relief. The relief of mesne profits accruing after institution is discretionary under Order 20, Rule 12 and therefore is not covered by Explanation 5.
- Under the old Code a subsequent suit for such mesne profits was not barred; there is no reason under the present Code why it should be held to be barred where the cause of action for those future mesne profits had not yet arisen when the first suit was filed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Naba Kumar v. Radheshyam, AIR 1931 PC 229 | Illustration of the object of O.2, R.2: to prevent multiplicity of suits. | Cited for the proposition that O.2, R.2 seeks to require inclusion of the whole claim to avoid split causes of action. |
| Ramaswami Iyer v. Sri Rangaraja Iyengar, AIR 1915 Mad 1132 | Authority for the view that court's power to direct enquiry into future mesne profits stands on same footing as power to decree possession/past mesne profits (i.e., not merely discretionary). | Used to show one stream of authority that R.12's use of "may" can be read as mandating enquiry when appropriate. |
| Haranandan Rai v. Baliram Prasad, AIR 1931 Pat 1 | Supports view that the court's power to direct enquiry into future mesne profits is on same footing as other reliefs; cited in discussion of whether "may" is compulsory. | Cited as part of the authority that favours treating R.12 as enabling a mandatory enquiry where merits justify it; also noted as part of the line of cases dealing with this question. |
| Atmaram Bhaskar v. Parasram, AIR 1920 Bom 39 | Another authority cited for the proposition that the power to direct enquiry into future mesne profits is not merely discretionary. | Placed alongside other cases to show that some decisions treat R.12 as imposing a duty to enquire into future mesne profits when appropriate. |
| Macdougall v. Patterson, (1851) 138 ER 672 | Principle that where a statute confers authority to do a judicial act in certain cases, those authorised are bound to exercise the authority when the case arises and duly applied for. | Invoked to support the argument that the word "may" in R.12 could be read with compulsory force in appropriate circumstances. |
| Mohammed Ishaq Khan v. Mohammed Rustom Alikhan, AIR 1918 All 412 | Authority for the view that where multiple claims are dealt with in one rule, "may" could be construed as "shall" for one sub-clause without converting other sub-clauses. | Used to show that differing constructions of "may" in different sub-clauses are permissible and that one clause's mandatory reading need not control others. |
| Doraiswami Iyer v. Subramania Iyer, AIR 1918 Mad 484 | Similar point on construction of "may" and scope of court's powers under the rule. | Cited as authority supporting refined construction of the rule's language; also associated with Wallis O.J.'s view distinguishing discretionary reliefs. |
| Ramjanam Singh v. Khub Lal, AIR 1925 Pat 145 | Held that a subsequent suit for mesne profits is not barred under S.11 or O.2, R.2 because future mesne profits arise after institution of the suit. | Cited as a decision holding O.20, R.12 to be permissive and that where a decree is silent a second suit is not barred; relied on to support the position that the second suit here is maintainable. |
| Mon Mohun v. Secretary of State, 17 Cal 968 | One of several High Court decisions (under the old Code) recognizing that a separate suit will lie for mesne profits when a decree for possession is silent. | Used to demonstrate the consensus among High Courts that a separate suit is maintainable where the decree is silent as to mesne profits. |
| Bhivrao v. Sitaram, 19 Bom 532 | Same line of authority: separate suit lies when decree is silent on mesne profits. | Adduced as part of the supporting group of cases decided under the old Code. |
| Ram Dayal v. Madan Mohan Lal, 21 All 425 | Another All-India decision indicating a separate suit lies where decree silent (old Code). | Cited as further High Court authority showing the accepted construction. |
| Kuppuswamy v. Venkataramier, 15 Mad LJ 462 | Further authority from the Madras reports under the old Code on separate suits for mesne profits. | Included among precedents showing the settled approach before the current Code. |
| Sadasiva Pillai v. Ramalinga Pillai, 2 Ind App 219 (PC) | Judicial Committee accepted the construction that a separate suit was maintainable when decree silent. | Cited to show that the Judicial Committee had earlier accepted the construction relied upon by High Courts. |
| Wallis O.J. in Doraiswami Iyer (AIR 1918 Mad 484) and related authorities | Held that the word "relief" in Explanation 5 does not include mesne profits accruing after institution (no cause of action had arisen then). | Cited to support the proposition that Explanation 5 should not be read to bar subsequent suits for future mesne profits. |
| Bipul Behari v. Nikhil Chundra, AIR 1929 Cal 566 | Authority consistent with the view that future mesne profits are not barred by Explanation 5. | Referred to as part of the body of decisions supporting the respondents' position. |
| In re Kantheeswaram E. Koil, AIR 1937 Mad 46 | Also cited in support of the view excluding future mesne profits from Explanation 5. | Used as another decision aligning with the view that Explanation 5 does not cover discretionary future mesne profits. |
Court's Reasoning and Analysis
The court proceeded by first examining whether the mesne profits now claimed were part of the cause of action in the earlier suit. It distinguished between (a) mesne profits accrued prior to institution of the suit and (b) mesne profits accruing after institution. The court accepted that mesne profits accruing before institution arose out of the same cause of action as the suit for possession. However, it found that mesne profits accruing after the institution of the suit could not be said to have arisen before the suit was instituted.
The court then analyzed Order 20, Rule 12 of the CPC, which enumerates the reliefs available in a suit for possession and mesne profits (possession; past mesne profits or an enquiry; and a possible enquiry into mesne profits from institution until delivery or specified events). The text of R.12 uses the word "may," and the court reviewed two competing lines of authority:
- One line treats the word "may" as having compulsory force for the purposes of R.12—i.e., the court should direct an enquiry into mesne profits from institution until delivery whenever the successful claimant establishes his right on the merits. This line is supported by decisions such as Ramaswami Iyer, Haranandan Rai and Atmaram Bhaskar, and is reinforced by the general principle in Macdougall v. Patterson that a statutory authority to do a judicial act should be exercised when the case arises and application is properly made.
- A contrary line of authority holds that the word "may" is permissive, that the court's power to direct such an enquiry remains discretionary, and that where the decree is silent the plaintiff may still institute a separate suit for future mesne profits. The court cited Ramjanam Singh and several High Court decisions following the older Code to this effect.
The court observed that the presence of different sub-clauses under the same rule does not compel a uniform construction of "may" across all clauses; it referenced authorities indicating that a clause-by-clause approach to construction is permissible. The court then examined Explanation 5 to Section 11 of the CPC, which deems any relief claimed in the plaint but not expressly granted by the decree to have been refused. The plaintiff-respondent's position (endorsed by several authorities cited) was that Explanation 5 should be read in conjunction with Section 11 and that the word "relief" in Explanation 5 refers to reliefs that the court is bound to grant (i.e., those that form part of the cause of action and which the court must grant once the cause of action is established), not to discretionary reliefs such as future mesne profits which arise after institution.
The court noted that in the earlier ex parte proceedings there was no trial or decision on the issue of the plaintiff's right to mesne profits or their quantum; the decree was silent although an enquiry had been prayed for. Because there was no issue actually tried and decided in the earlier suit, the court concluded that the matter was not "directly and substantially in issue" in the earlier suit for the purposes of Section 11. Taking these points together, the court concluded that neither Order 2, Rule 2 nor Explanation 5 to Section 11 barred the subsequent suit for mesne profits accruing after institution of the first suit.
Holding and Implications
Holding: The appeal is dismissed. The court concluded that neither Order 2, Rule 2 of the CPC nor Explanation 5 to Section 11 of the CPC constitutes a bar to the plaintiff's subsequent suit for mesne profits accruing after the institution of the earlier suit where the earlier decree is silent on mesne profits.
Implications:
- Direct effect on the parties: The plaintiff's subsequent suit for mesne profits (for the period from institution of the first suit until delivery of possession) is maintainable; the defendants' pleas under O.2, R.2 and Explanation 5 to S.11 are rejected. The appeal is dismissed with costs in favour of the respondent.
- Broader precedent: The opinion does not state that it creates a new principle of law; it relies on and aligns with existing authorities and the consensus among certain High Court decisions and earlier authorities. The decision's immediate consequence is confined to the dispute between the parties (i.e., permitting the subsequent suit to proceed), and the opinion does not claim to establish a fresh binding precedent beyond the application of cited authorities to the facts before the court.
Disposition: Appeal dismissed.
1. This second appeal raises an interesting point which has led to some divergence of opinion. The plaintiff-respondent purchased two plots, No. 1227 and No. 1712, and brought a suit O.S No. 298 of 1943 in the Court of the 2nd Munsif, Cuttack, for recovery of possession of the same from the defendants who had trespassed upon the suit lands. In that suit he had prayed for subsequent mesne profits till recovery of possession. The suit was decreed ex parte and the decree directed that the plaintiff should be put in possession of the disputed properties, but contained no directions with regard to the claim for future mesne profits. In execution of the decree the plaintiff took delivery of possession of the disputed plots through Court, on 7-8-1946 and on 31-1-1947. Thereafter, he filed another suit for mesne profits, from the date of institution of the suit till the date of delivery of possession. The defendants contended that the second suit was barred under 0.2, R. 2 as well as under Explanation 5 to Section 11 of the CPC. Both the courts below have overruled the contention, and the point for decision is whether the plea taken by the defendants should be upheld. The plaint in the earlier suit has not been exhibited, but it appears from Ext. 4; the certified copy of the decree in that suit (O.S 298 of 1943) that no direction had been given with regard to the ascertainment of the mesne profits. The decree is silent about it. But it is clear that if the plaintiff was bound to include this claim for subsequent mesne profits in his earlier suit, the second suit out of which the present second appeal arises must be held to be barred by the provisions of O. 2, R. 2 of the CPC. That rule lays down that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action and is intended to deal with the vice of splitting the cause of action.
2. It provides that the suit must include the whole of any claim which the plaintiff is entitled to make in respect of any cause of action on which he sues, and that if he omits (except with the leave of the Court) to sue for any relief to which his cause of action would entitle, him, he cannot claim it in a subsequent suit. The object of this salutary rule is doubtless to prevent multiplicity of suits. See — ‘Naba Kumar v. Radheshyam’, AIR 1931 PC 229 (A). The question, therefore, is whether the plaintiff was entitled to the claim which he now makes when he filed the first suit, and whether that claim arose out of the cause of action upon which the earlier suit was founded.
3. There can be no doubt that the claim for mesne profits which accrued from the date of the sale deed in favour of the plaintiff to the date of institution of the suit arose out of the same cause of action. But it can hardly be said that the claim for mesne profits subsequent to the institution of the suit also arose before the suit was instituted.
4. Order 20, Rule 12 of the CPC provides the rule as to what the Court may do in a suit for possession and mesne profits. That rule is as follows:
“12.(1) Where a suit is for recovery of possession of immovable property and for rent or for mesne profits, the Court may pass a decree
(a) for possession of the property,
(b) for the rents or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an enquiry as to such rents or mesne profits,
(c) directing an enquiry as to rents or mesna profits from the institution of the suit until—
(i) delivery of possession;
(ii) relinquishment of possession by the judgment-debtor with notice to the decree-holder through court; or
(iii) the expiration of three years from the date of the decree, whichever event first occurs;
(2) Where an enquiry is directed under clause (b) or clause (c), a final decree in respect of the rents or mesne profits shall be passed in accordance with the result of such enquiry.”
5. It will be seen that all the reliefs which the Court is empowered to grant in a suit for possession are enumerated in Rule 12. The word “may” used in the Rule would seem to indicate that it was discretionary with the Court to grant the prayer of the plaintiff with regard to mesne profits from the institution of the suit until delivery of possession to the decree-holder, or the expiration of three years from the date of the decree, whichever event first occurs. But it has been held in some cases that the power of the Court to direct an enquiry into future mesne profits has been placed precisely on the same footing as the power of the Court to pass a decree for possession, or for past mesne profits. There is nothing to indicate that the one relief is more a matter of discretion and less of right than the other. See — ‘Ramaswami Iyer v. Sri Rangaraja Iyengar’, AIR 1915 Mad 1132 (B) and the dictum of Das, J. in — ‘Haranandan Rai v. Baliram Prasad’, AIR 1931 Pat 1 (C) at p. 11. See also — ‘Atmaram Bhaskar v. Parasram’, AIR 1920 Bom 39 (D).
6. According to this view the word “may” used in R. 12 of O. 20 has a compulsory force even if, ordinarily, it is an enabling word. It confers a power on the Court to use that power when occasion arises and in such circumstances the Court is bound to exercise that power if that would avoid a multiplicity of suits. It has accordingly been held that the power should be exercised on all occasions on which the successful claimant establishes his right on merits. This view follows the well-known principle laid down in — ‘Macdougall v. Patterson’, (1851) 138 ER 672 (E) that where a statute confers an authority to do a judicial act in certain cases, it is imperative on those so authorised, to exercise the authority when the case arises and its exercise is duly applied for by a party interested and having the right to make the application. But so far as the interpretation of Rule 12 is concerned there is abundant authority for the contrary view in several reported decisions of the High Courts where it has been held that the word “may” has no such compulsory force and that it is still discretionary with the court whether or not to grant the relief for future mesne profits.
7. When different claims are dealt with in one rule under various sub-sections, the fact that the word “may” should be construed as “shall” in respect of one of the sub-sections owing to the nature of the claim which it deals with, does not necessarily mean that the word cannot be construed in its ordinary sense as regards the other clauses. See ‘Mohammed Ishaq Khan v. Mohammed Rustom Alikhan’, AIR 1918 All 412 (P); ‘Doraiswami Iyer v. Subramania Iyer’, AIR 1918 Mad 484 (PB) (G). In — ‘Ramjanam Singh v. Khub Lal’, AIR 1925 Pat 145 (2) (H) it was held that a subsequent suit for mesne profits is not barred either under S. 11 or under O. 2, R. 2 of the CPC as the claim for future mesne profits arises subsequent to the suit for possession and not at the date when the suit was instituted. It has also been held that O. 20, R. 12 of the CPC is permissive in nature and casts no obligation on the Court to direct an enquiry. Where therefore the decree is silent a second suit is not barred. This decision was followed in — ‘AIR 1931 Pat 1 (C)’ by Wort, J. to whom the matter was referred on a difference of opinion between Fazl Ali and Das, JJ.
8. The consensus of opinion among the several High Courts is that where a decree for possession is silent as regards the mesne profits which had accrued between the dates of institution of the suit and delivery of possession, a separate suit will lie for subsequent mesne profits: See — ‘Mon Mohun v. Secy of State’, 17 Cal 968 (I); Bhivrao v. Sitaram’, 19 Bom 532 (J); ‘Ram Dayal…(Defendant); v. Madan Mohan Lal…(Plaintiff).*’, 21 All 425 (PB) (K); and ‘Kuppuswamy v. Venkataramier’, 15 Mad LJ 462 (PB) (L) — which are all cases decided under the old Code. But even prior to these decisions the Judicial Committee had accepted that construction as the settled law in — ‘Sadasiva Pillai v. Ramalinga Pillai’, 2 Ind App 219 (PC) (M).
9. It was then argued that irrespective of the provision contained in O. 2, R. 2 of the CPCS. 11, Explanation 5, constitutes a bar to the maintainability of the second suit. Section 11, Explanation 5 says:
“Any relief claimed in the plaint which is not expressly granted by the decree shall, for the purpose of this section, be deemed to have been refused.”
10. The main argument advanced in support of the view taken in the latter group of decisions cited above is that the mesne profits that accrue subsequent to the institution of the suit formed no part of the cause of action on which the plaintiff comes to court, and therefore, the plaintiff cannot as a matter of right claim any decree for such mesne profits, except by filing another suit for that purpose.
11. It is, therefore, argued for the respondent that before this relief is barred under Explanation V to Section 11 of the CPC it must be shown that the relief claimed is one which the Court was bound to grant and not one which was discretionary for the Court to grant. Under the old Code, a subsequent suit for mesne profits was not barred and there does not appear to be any reason why it should be barred under the present Code. The expression “relief claimed” used in Explanation 5 to S. 11 refers to a relief which the Court is bound to grant and not to one which it is discretionary for the Court either to grant or not to grant. In other words, it must form part of the relief claimed in the plaint, that is, something which the plaintiffs can claim as of right and something included in his cause of action. If the cause of action is established then the Court has no discretion to refuse.
12. This view was given expression to by Wallis O.J in ‘AIR 1918 Mad 484 (F.B) (G)’, and his Lordship observed that the word “relief” occurring in Explanation 5 did not include reliefs such as mesne profits accruing after the institution of the suit as to which no cause of action had then arisen, but which the Court has been expressly empowered to grant, and was followed by Fazl Ali J., in ‘AIR 1931 Pat 1 (C) at p. 11’. See also — ‘Bipul Behari v. Nikhil Chundra’, AIR 1929 Cal 566 (N), and in — ‘In re Kantheeswaram E. Koil’, AIR 1937 Mad 46 (O).
13. Furthermore, it appears to me that Explanation 5 should be read along with the parent S. 11, which says that no Court shall try any suit I or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the parties. In the plaintiff's earlier suit, where there was a decree ex parte, there was no issue raised as to the right of the plaintiff to claim such mesne profits or as to the quantum to which he may be entitled. All that appears from the record is that he prayed for an enquiry and the decree is silent with regard to the relief claimed. In these circumstances it cannot be said that the issue had been tried and decided in the earlier suit. I have, therefore, arrived at the conclusion that neither O. 2, Rule 2, nor Explanation 5 to Section 11 of the CPC constitutes a bar to the present suit. The appeal fails and is dismissed with costs.
B/D.H.Z
14. Appeal dismissed.
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